Sulaiman Daud J:

It is to be noted at the outset that the present application was heard together with O.S. No. 24-212-98 (MR), O.S. 24-214-98 (MR) and O.S. 24-266-98 (MR) where the defendant prayed for similar relief to set aside the order of sale and other subsequent orders as set out in each of those application based on similar grounds. The learned counsels for both the defendant and the plaintiff also adopted the submission made in the present application with certain modification according to the facts of each particular case.

In the present application the defendant by way of notice of motion prayed for the following relief against the plaintiff, namely:

(a) that the order of sale dated 6 July 1999 granted by the learned Judicial Commissioner be set aside, struck off or discharged;

(b) that the order made by the learned deputy registrar on 19 June 2000 for the reserve prices to be set at RM69,500 and RM139,000 respectively be set aside, struck off or discharged;

(c) that the order made by the learned senior assistant registrar on 6 July 2001 for the distribution of the proceeds of the alleged auction by tender be set aside, struck off or discharged;

(d) that the purported sale and/or auction by tender held on 26 October 2000 be declared null and void ab initio or null and void and/or is a nullity on the ground that the said sale and/or auction was not made in accordance with the law;

(e) that the order of sale made by the learned senior assistant registrar on 12 May 2001 be set aside, struck off or discharged and/or alternatively that the purported date fixed for the sale and/or auction by tender on 30 August 2001 be aborted and/or cancelled and/or terminated.

All the orders sought to be set aside or struck off herein relate to two pieces of land described as Lot 337, Block 2, Miri Concession Land District and Lot 2706, Block 1, Lambir Land (collectively referred to as "the subject lands") that were charged by the defendant to the plaintiff as security for certain credit and other banking facilities granted by the plaintiff to a third party Chai Pak Tuong.

In support of the application the defendant relied on the affidavits of Chai Koh Shon affirmed on 15 August 2001, 17 September 2001 and 27 December 2001 (referred to as the "defendant's 1st affidavit", "defendant's 2nd affidavit" and "defendant's 3rd affidavit" respectively). In opposing the application the plaintiff filed in two affidavits of Norliza Hj Chem both of which were affirmed on 29 August 2001 (referred to as the "plaintiff's 1st affidavit" and "plaintiff's 2nd affidavit" respectively), and another affidavit by their counsel Ms Jagjeet Kaur Sandhu affirmed on 14 February 2001.

The brief facts pertinent to this application are as follows. By a memorandum of charge Instrument No. L. 2702/1995 registered at Miri Land Registry Office on 7 April 1995 ("the said charge") the defendant charged the subject lands to the plaintiff to secure an overdraft facility up to the maximum aggregate sum of RM120,000 granted by the plaintiff to a third party, Chai Pak Tuong ("the borrower"). The defendant undertook to repay on demand all such sums of money which shall be due and owing by the borrower in respect of the said facilities together with interest thereon at the rate as set out in the charge instrument.

When the borrower failed to regularise the amount overdrawn by him under the facilities, the plaintiff through their advocates sent to the defendant and the borrower by registered post notice of demand dated 5 November 1997 for the payment of RM130,852.20 owing as at 30 October 1997. The letter of demand were however returned to the plaintiff's advocates marked "unclaimed" which caused the plaintiff to publish the relevant statutory notice in two consecutive publications of the Gazette of the State of Sarawak pursuant to s. 208(5) of the Sarawak Land Code (Cap 81) ("the Land Code").

On 30 September 1998 the plaintiff commenced the foreclosure proceedings to obtain the order